Florio's "lose-lose" ruling proposal

I don't understand the push for a settlement. Why shouldn't the judge make a decision, it's his job. If a judge pushes for a settlement when he knows legally one side is right seems pretty unethical.

Instead of manipulating the parties to settle, Berman could do the fair thing and refer this to a court appointed third party arbitrator with both sides agreeing to abide by the outcome.

Bobsyouruncle said:

I don't understand the push for a settlement. Why shouldn't the judge make a decision, it's his job. If a judge pushes for a settlement when he knows legally one side is right seems pretty unethical.

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Judges typically do not want to settle labor disputes as it sets precident and influences policy.

robertweathers said:

Judges typically do not want to settle labor disputes as it sets precident and influences policy.

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But that is their job. Not wanting to do something you signed up to do is a pretty piss poor excuse.

And the precedents exist already, he can follow or change them but "judging" what is correct, then avoiding making a judgement doesn't strike me as an ethical standard for someone who holds the title "judge".

I'm not a fan of the fine for non-cooperation. The NFL and NFLPA sat down and hammered out violation and punishment details for months in negotiations. It covers violations in plenty of details down to the finest minutiae, and now we're supposed to believe that they simply forgot to cover the detail of subpeopna's on private phones?

I say BS, the NFLPA never agreed to that, and the NFL never agreed to it and that's why it's not in the CBA. If Goodell wants to secure that power he can go back to the negotiating table, not invent it from thin air.

Bobsyouruncle said:

But that is their job. Not wanting to do something you signed up to do is a pretty piss poor excuse.

And the precedents exist already, he can follow or change them but "judging" what is correct, then avoiding making a judgement doesn't strike me as an ethical standard for someone who holds the title "judge".

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Sad I know.

Bobsyouruncle said:

But that is their job. Not wanting to do something you signed up to do is a pretty piss poor excuse.

And the precedents exist already, he can follow or change them but "judging" what is correct, then avoiding making a judgement doesn't strike me as an ethical standard for someone who holds the title "judge".

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Other issue is that they want this out of the court system. No matter what he rules, losing party is likely to appeal. Chance that the appeals judge overturns decision, which is embarrassing to any judge. With a settlement, there is no appeal as everyone is equally "satisfied" and it's now completely out of the court system.

Bobsyouruncle said:

But that is their job. Not wanting to do something you signed up to do is a pretty piss poor excuse.

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I generally don't like analogies, this one may prove helpful.

A judge's job is to come to a resolution, whether by getting the parties to settle, or forcing a decision upon them. Settlements are a nice resolution that is final and will have no more complications. Forced decisions are subject to appeal, potential criticism and potential, unintended consequences.

A bounty hunters' job is to bring in a fugitive, either peacefully, or by force. When a fugitive comes peacefully, it is a slam dunk without further complications. Forcing a fugitive can result into some pretty severe, unintended consequences.

Galeb said:

I generally don't like analogies, this one may prove helpful.

A judge's job is to come to a resolution, whether by getting the parties to settle, or forcing a decision upon them. Settlements are a nice resolution that is final and will have no more complications. Forced decisions are subject to appeal, potential criticism and potential, unintended consequences.

A bounty hunters' job is to bring in a fugitive, either peacefully, or by force. When a fugitive comes peacefully, it is a slam dunk without further complications. Forcing a fugitive can result into some pretty severe, unintended consequences.

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If a judges job were simply to come to a resolution then wouldn't need to be trained in law. Anybody can come to a resolution. As far as I know, a judges job is to administer the law.

Bobsyouruncle said:

If a judges job were simply to come to a resolution then wouldn't need to be trained in law. Anybody can come to a resolution. As far as I know, a judges job is to administer the law.

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Agreed. I tried to keep the analogy simple.

Hammer of Thor said:

Other issue is that they want this out of the court system. No matter what he rules, losing party is likely to appeal. Chance that the appeals judge overturns decision, which is embarrassing to any judge. With a settlement, there is no appeal as everyone is equally "satisfied" and it's now completely out of the court system.

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Getting it out of the court system is not their job. That's like saying my job as a bank teller is to get people out of the bank. It's not, his job is to be a judge, therefore judge the case. Whether he thinks contract disputes belong in court is irrelevant. The law says it belongs there, and he should judge what's correct legally, not what's convenient or most expeditious for him.

Just my take, but this is article number one thousand on how the judge should be manipulating people so there's a settlement, and I question the ethics of that plan. I don't see anything about being a judge that confers that they should avoid ruling for the sake of convenience.

Rob0729 said:

I see that as the opposite. I think the NFL would think this outcome worst possible outcome. It would expose the Wells investigation for the sham it was. It could open the League up to defamation suits from Brady, Jastremski, McNally, Kraft, Richie Incognito, and Jim Turner (if the Wells report in this case is shown to a sham it would strengthen defamation suits for any Wells investigation). If making public work product of the Wells investigation shows a concerted effort to manufacture evidence, it could cost the NFL hundreds of millions and most certainly Goodell his job.

Goodell isn't worried about being embarrassed in this situation. He is worried that releasing everything and forcing Pash to testify will provide Brady with proof of malice which would give him a slam dunk defamation suit. With the report that he lost 50% of his endorsements, even an out of court settlement would be in the tens or hundreds of millions. If Brady wins a defamation suit either in court or via settlement, Goodell would be fired by the owners.

And let's not forget that if there is enough evidence that the Wells investigation was a sham could trigger Congress to call for hearings. Goodell testifying to Congress could cost him his job.

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My take exactly, my suspicion is that Pash pushed Wells away from Columbia and to a firm that would just "find" something. "Lets find a firm that says it is ok to make baby blankets out of asbestos and that 2nd hand smoke is fine"

Kraft pissed away any opportunity regarding the chance to get the picks back by not even appealing the punishment.

Brady did not lose any endorsements, the article I believe said that he "could lose" endorsements.

There was speculation that Brady may go into politics, I would love him being on the committee that call Goddell into testify.

Bobsyouruncle said:

I don't understand the push for a settlement. Why shouldn't the judge make a decision, it's his job. If a judge pushes for a settlement when he knows legally one side is right seems pretty unethical.

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A judge's job on the day to day/district court level is dispute resolution. A typical judge has way more cases assigned to them then they have court room days available for trial. If a judge can get two parties to resolve a dispute without a trial, most of the time, that is doing the job of resolving a dispute effeciently as a non-externally imposed solution (the judge's decision) is far more likely to move a solution outside of a theoretical agreement zone where the two parties would have been willing to settle.

Think about this hypothetical scenario: My neighbor likes to sunbathe in the nude. Not a problem for me as she is quite cute, but I have two young kids who really don't need to see everything hanging out. So we have a minor dispute.
We could resolve this by having a judge declare that either I am a nosy pervert, or requireing my neighbor to build an 8 foot privacy fence or to cease and desist entirely OR my neighbor and I could discuss this over a beer and have her accede to my minimal demand is that she brings a towel with her so when she gets up to go to her back door, she is covered up. She is amiable to that demand.

The judge has far more things to do than resolve a piddling dispute that can be resolved on its own with a tiny bit of prodding.

Guys, Florio isn't suggesting this will happen or that it should happen. He's merely pointing out that Berman wants them to settle, and a scenario like that would allow the judge to force the sides to come together, basically poison pill his verdict for both sides if they don't figure it out on their own.

I don't think it's at all likely, but I hadn't thought through different permutations of a ruling that would look awful for both parties. This might just be it.

That said: if there truly was no deflation, or any attempt to deflate footballs, then I say bring it on. I'd be shaking while McNally and Jastremski are on the stand but if they and Brady have absolutely nothing to hide then let it ride, worst case they look stupid on the stand and their words get twisted but we're already there, they've already been painted as guilty so give them a shot to exonerate themselves.

I have no view on the specifics of Florio's scenario, but I think he's on target in that Berman will force a settlement by playing hardball.

He pretty much put the NFL on notice yesterday that he's not inclined to give the Wells report much credibility (should make for some very interesting discussions between the League and Paul Weiss when it comes time to make the final payment of whatever is due on the bill). It is reported that he actually used the word (I haven't seen the transcript) "troubled" when he spoke of his view of the lack of proof of a direct connection between Brady and the alleged activities.

He also put Brady on notice that he's really not buying his cell phone explanation, to the point where Kessler actually felt he had to say (reportedly as I haven't read the transcript) that Brady could have handled that better and that the two jamokes in charge of the equipment might have done something wrong that Brady didn't know about or approve. As far as I know that was new ground.

When Kessler said something to the effect that Tom Brady is different than the rest of us when it comes to having to be careful about the disposal of his cellphone, Berman made a joke that was a pointed reminder that, since he is a Federal Judge who has handled extremely sensitive cases, Brady wasn't the only one in the room who has to be careful about such things. Even more interestingly (and, once again no transcript), Kessler blamed Yee for giving Brady that advice. That should have made for an interesting conversation between those two last night.

Bottom Line, IMO: Berman is holding the hammer of an up or down ruling over the heads of both sides and is signalling the NFL that, while he might still rule purely on the issue of whether the CBA was violated, he is not impressed with their position and could well vacate the Ruling.

My guess (purely a guess) is that Berman now knows that there is no settlement that entails Brady accepting direct responsibility for anything and that the NFL needs to save face in some way if it is to settle. A big fine for non-co-operation might be enough to get this settled.

Someone pointed out that the Argentine Bonds crisis (a matter that impacts the lives of millions of people and the disposal of billions of dollars) was being adjudicated at the same time in Judge Griesa's Courtroom, nine floors above Berman's. There is really no way that Berman's patience with this matter will extend much beyond next week, IMO.

Or Berman may decide that any of the options Florio listed are a waste of his time, so even he is unwilling to do anything like that. He may just flip a coin based on what he knows now. That's the cleaner way to get this off his table.

AND, what makes anyone think Jastremski or McNally are going to fold? McNally is a minimum wage employee 8 times a year. Somehow, this guy endured 4 separate grilling sessions, and at least one lasted all day in front of supposedly very tough ex-FBI interrogators. 8 hours of confrontation with FBI guys. And he didn't contradict himself? Really? He must be an evil mastermind to have endured that without tripping up. Either that, or our nation is in big trouble for leaving investigation/interrogation to complete dunces.

Michael McCann@McCannSportsLaw

@MonicaDavies01 @StephStradley The parties have asked Judge Berman to either confirm or vacate the award; unlikely he does something else.

JJ and McNally held up under questioning by Wells and his goons, so I think that they would do so again. I can't IMAGINE the extent the NFL would HATE having all of their internal correspondence revealed.

The more wide out in the open this gets, the more it favors the innocent (us) and the more it shows who were the schemers (the NFL) and the lengths they would go to carry out their sting.

In fact, this might be the best way to not just usher out Goodell, but also his whole crew of slimy ex-Jets yes men.

It might be worth the extra time it may take to get done, if we indeed smoke out ALL of the ****roaches.

If you believe Brady is innocent (and I do), this is exactly what I'd like to happen. It would not just get Brady off on a technicality, it would exonerate him.

Bobsyouruncle said:

I don't understand the push for a settlement. Why shouldn't the judge make a decision, it's his job. If a judge pushes for a settlement when he knows legally one side is right seems pretty unethical.

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The best explanation I've seen is Berman's own analogy of a meat cleaver vs. a scalpel. A negotiated settlement should be closer to pareto-optimal than a judge-written one. In theory, the parties could negotiate changes to the judge's order after the fact, getting to the same outcome, but I gather there are practical obstacles to that.

Also and perhaps more important, settling consumes fewer resources than getting to a verdict, exhausting appeals, and so on.